To: tinkershaw who wrote (73353 ) 5/22/2001 7:37:09 AM From: NightOwl Respond to Tinker:But what I think it comes down to is the appellate court deciding exactly what legally amounts to fraud in a case like this, and once decided, whether or not the jury could reasonably have found such facts to support the legal requirements. intentional wrongdoing will be the same in every case arising from this jurisdiction. But I suspect RMBS will use the kitchen sink approach and ask the appellate judges to rule on every conceivable issue that they can raise with a straight face. Quite frankly, and I haven't looked extensively, but from the facts I've seen, and many of them are contradictory, like how can one commit fraud if one's patents don't infringe to begin with (but leave that as it may) there are some serious questions here about whether a legal case for fraud actually existed, or existed in the way the jury was instructed. intend to do harm to their fellow creatures, even though they fail miserably to achieve that end, through no lack of trying. Think of it as the Civil counterpart to the Criminal charge of "Attempted Fraud," because, well,... that's what it is. But I would certainly like to hear the policy rational for giving a pass to those too "incompetent" to achieve the injury and damages they intended to produce.de novo in name only. The judges on appeal will get to determine all the issues of law and fact as they wish; but the problem for RMBS counsel will be their factual Markman record and the "multiplexed bus" terminology of the claim language itself as Mr. Bilow has ably documented. The only Markman hope they have that I can see is that the Appeals will find error in the way that Judge Payne associated this language with the patents in issue through all the intervening divisionals, etc. But that's a long, long shot as I see it. This case has all the earmarks of the very kind of IP stretching that the appellate court bashed unmercifully in Festo. But you already know that.clear and convincing nature of the evidence of Fraud submitted by IFX. But even with that I still think they have a better chance to avoid the Fraud verdict than the Markman result.
